Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2010-08

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ROBERT RESENDES, Petitioner, vs.

SEVIER SCHOOL DISTRICT, Respondent.

DECISION AND ORDER

Case No. 10-8

By this appeal, Petitioner, Robert Resendes seeks access to records of a household application for free and reduced price school lunch under the federal school lunch program.

FACTS

Mr. Resendes is the biological, but non-custodial parent of minor children attending school within the Sevier County School District (“District”). Additionally, Mr. Resendes does not reside in the same household as his minor children.

On or about July 31, 2009 Mr. Resendes made a Government Records Access and Management Act (“GRAMA”) request for 2009-10 school year household application for free and reduced price school lunch. His GRAMA request was denied by Karen Pace in an email dated August 12, 2009, indicating that the application was a protected record and could not be released. Mr. Resendes asked for a clarification of the denial, which was provided to him on August 20, 2009. In the denial letter, Ms. Pace indicated the basis of the denial of Mr. Resendes’ GRAMA request was Utah Code Ann. §§ 63G-2-201 (3)(b) and 63G-2-302(2)(a), and also that the records were restricted by a federal statute or regulation, specifically 7 C.F.R. 245.6(k).

Mr. Resendes appealed the denial to Myron Mickelsen, Assistant Superintendent for the District, who denied Mr. Resendes’ appeal stating: (1) Mr. Resendes’ former spouse was actually the subject of the records, and not Mr. Resendes’ minor children; (2) Access to the records was restricted by federal statute or regulation and; (3) Even if access to the record were not restricted by federal statute or regulation, the records were properly classified as “private” pursuant to GRAMA and therefore, his GRAMA request should be denied.
Mr. Resendes now appeals to the Utah State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on April 8, 2010, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See Utah Code Ann. §§ 63G-2-302, -303, -304 and -305.

2. Upon request, and except as provided in Subsection (11)(a), a governmental entity shall disclose a private record to the subject of the record or the parent or legal guardian of an unemancipated minor who is the subject of the record, Utah Code Ann. § 63G-2-202(1)(b).

3. However, records to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, including records for which access is governed or restricted as a condition of participation in a state or federal program or for receiving state or federal funds, are not public records. Utah Code Ann. § 63G-2-201(3)(b).

4. At the hearing, Mr.Resendes argued that he should have access to the records because the subjects of the records were his children. Mr. Resendes further argued that the applications were actually state records and federal statutes and regulations did not apply. He also noted that he had previously requested and received copies of the applications in the past.

5. The District’s counsel argued that while applications for the free and reduced price school lunch program were provided by the District, the program itself was subject to federal regulation, pursuant to 7 C.F.R. 245.6(k), and that the District had a duty to comply with federal regulations prohibiting disclosure of the records to Mr. Resendes. Counsel stated that the federal regulation specifically limited who could consent to release of the records to parents and/or guardians living in the same household and therefore, Mr. Resendes could not claim a right to receive the records based upon federal law. Counsel claimed that since Mr. Resendes’ former spouse was required to disclose her financial information and qualification were based upon her information, she was actually the subject of the records. Finally, counsel contended that even if the records requested by Mr. Resendes were subject solely to GRAMA and not federal regulation, the records would were still properly classified as “private,” pursuant to Utah Code Ann. § 63G-2-302(1)(a). Concerning the previous applications disclosed to Mr. Resendes, counsel stated that this was an error on the part of the District and they should not be required to perpetuate an error contrary to law.

6. The Committee having reviewed the submissions of the parties and having heard argument at the hearing of this matter finds that based upon the circumstances of the present case, the District’s denial of Mr. Resendes GRAMA request was proper. The Committee is persuaded the records requested by Petitioner are records to which access is restricted, pursuant to a federal regulation for which access is governed or restricted as a condition of participation in federal programs, pursuant to Utah Code Ann. § 63G-2-201(3)(b).

According to federal regulation, only “a parent or guardian who is a member of the child’s household for purposes of the free and reduced price meal or free milk application may give consent to the disclosure of free and reduced price eligibility information.” 7 C.F.R. §245.6(i). Mr. Resendes is not the subject of the records and is not a member of his child’s household and therefore, he does not have a right to access the records.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Robert Resendes is denied.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code Ann. § 63G-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-2-403(14)(d), the governmental entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental entity fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (1) Impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) Send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.

Dated this 15th day of April 2010.

____________________________
SCOTT WHITTAKER, Chairman
State Records Committee